ORDER :

Chandramauli Kr. Prasad, J.

The appellant, aggrieved by his conviction under section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short the ‘NDPS Act') and sentence of rigorous imprisonment for ten year sand fine of Rupees one lac, in default, to suffer further imprisonment for two and half years, has preferred this appeal with the leave of the Court.

2. According to the prosecution, on 13.09.1997, PW-8 Hari Singh, Sub-Inspector of Police along with other police officials was on a patrolling duty and reached near Char Khamba Crossing in the main Bazar Ram Nagar, Karnal, got a secret information that the appellant and another accused are dealing in the sale of poppy husk and if a raid is conducted, they could be apprehended with the huge quantity of the said contraband. PW-8 Hari Singh on the basis of that information, sent Ruqa Ex. PH to the police station. On that basis, formal First Information Report (for sort the ‘FIR') was registered against the appellant and another accused. In order to apprehend the accused with the contraband, this Sub-Inspector of Police, according to the prosecution, made an attempt to join an employee of the power-house but he refused to be associated with them.

3. The prosecution has alleged that when the police party reached the spot, two persons were found in a corner of the National Dairy Research Institution Farm sitting on the bags under the trees. An attempt was made to apprehend them but they fled away from the place of occurrence by taking benefit of darkness. Information was given to PW-5 Mr. Sant Lal Phogat, Deputy Superintendent of Police who came and in his presence, the bags were checked. The total number of bags found were 27 and each bag contained 30 kilograms of poppy husk. According to the prosecution, a sample of 250 grams was taken from each of the bags and duly sealed and bags were taken into possession. During the course of investigation, it transpired that it is the appellant and another accused who were sitting on the bags and ultimately, they have been charge-sheeted. The trial court mainly relying on the evidence of PW-8 Hari Singh, Sub-Inspector of Police who has effected the seizure, has convicted the appellant.

4. Mr. R. Nedumaran, learned counsel appearing for the appellant, raises a very short point. He submits that there is no evidence to connect the appellant with the crime. He submits that one of the witnesses who have come to depose in support of the case of the prosecution had stated that it is this appellant who was sitting on the bags containing contraband. In this connection, he has drawn our attention to the evidence of PW-8 Hari Singh. He has stated in his evidence that after receiving the secret information when he went to the place of occurrence, he found that two persons were sitting on the bags under the trees and when he tried to apprehend them, they fled away by taking the benefit of darkness. This witness further went on to say that on inquiry, the name of one of the persons who have been alleged to have fled away from the place of occurrence was disclosed as that of the appellant. However, which witness has said that has not been disclosed nor the said person has been examined by the prosecution. Mr. Rahul Bakshi, learned Additional Advocate General appearing for the respondent-State, however, submits that from the very fact that the secret information disclosed that it is the appellant who was dealing in poppy husk, it has to be assumed that the recovery was made from the appellant.

5. We have bestowed our consideration to the rival submissions and we find substance in the submission of Mr. Nedumaran. Simply because the secret information disclosed the name of the appellant, from that it cannot be conclusively inferred that in fact it is the appellant who owned the contraband. The prosecution has not brought on record any evidence to show that it is the appellant who was sitting on the bags to show his conscious possession. In